A Short Introduction to Judging and to Legal Reasoning

A Short Introduction to Judging and to Legal Reasoning

Geoffrey Samuel

This Short Introduction looks at judging and reasoning from three perspectives: what legal reasoning has been; what legal reasoning is from the view of judges and jurists themselves (the internal view); and what legal reasoning is from the view of a social scientist epistemologist or humanities specialist (the external view). Combining cases and materials with original text, this unique, concise format is designed for students who are starting out on their law programmes, as well as for students and researchers who would like to examine judging and legal reasoning in more depth.

Chapter 5: The relationship between the official and unofficial portraits (1)

Geoffrey Samuel

Subjects: law - academic, criminal law and justice, law and society, legal philosophy, legal theory, research methods in law, research methods, research methods in law

Extract

How do the official and unofficial portraits relate to each other in terms of legal knowledge? Much of course depends upon what one means by ‘legal’ in this context; but it is possible to identify three different positions that might help answer this question. Legal reasoning can, first, be examined from the position of a lawyer operating squarely within the discipline of law. Secondly, legal reasoning can be approached partly from within and partly from outside the discipline of law. A legal theorist may adopt, say, a viewpoint from another discipline such as economics or philosophy; or he/she may adopt, in part, a sociological position. Thirdly, legal reasoning can be examined from a position wholly outside the discipline of law. A social scientist might turn his/her attention to law, lawyers and the reasoning they use and perhaps employ a conceptual framework that is very different from the one used by a jurist examining legal reasoning from within the discipline of law. The first and the third position can be seen as operating under different ‘paradigms’. There is what might be called an ‘authority paradigm’ which governs those operating within the discipline of law; and there is an ‘inquiry paradigm’ that motivates scientists and many social scientists. As to the first – the authority paradigm – it has a connection with theology. This comment by a theologian captures the spirit of the authority paradigm. Some texts have such authority that they cannot be criticised, only interpreted. Legal texts are a little like this.

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